CARES Act

UPDATE: Click here to be redirected to the latest on the CDC Order Extension

The Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Coronovirus Response and Relief Supplemental Appropriations Act of 2021 provide “fast and direct economic assistance for American workers, families, and small businesses, and preserve jobs for American industries.” The CARES Act was signed into law on March 27, 2020. On August 6, 2020, the Federal Housing Finance Agency (FHFA – the parent entity for Fannie Mae and Freddie Mac) issued a press release announcing a new CARES Act-related mandate to increase awareness of tenant protections contained in the CARES Act. this 2.2 trillion economic stimulus bill includes a $300 billion one-time cash payment to individuals people who submit a tax return in America with the creation of the Paycheck protection program that provides forgivable loans to small businesses. Included in the CARES Act was a 120 – day moratorium, which prohibited certain property owners from filing non-payment of rent evictions, as well as collecting late fees. Updates will be posted in order – with the most recent first, below.

Covered Properties

For each property that DOES have that type of federally-backed financing, the CARES Act’s 120 Day late fee and eviction “moratorium” applied to the Property through July 25th. We call these “Covered Properties” and label them in our system so we can differentiate them from “Exempt Properties” (see below for more)

If you know your Property is a “Covered Property” under the Act, then please complete the form below letting us know the name of your Property and its status as a “Covered Property,” so we may then note that in our system.

For Covered Properties, remember: the CARES Act also requires that Covered Properties must provide a 30 Day Notice to Vacate to every tenant who is behind on their rent before you can submit a case to the Court for eviction due to the non-payment. The expiration of the “eviction moratorium” on July 25th did NOT remove the obligation to send these 30 Day NTV notices, however – we are still required to collect these Notices from you as part of our case review process unless/until we have a change in the law or a binding clarification of this provision. So, if you’re a “Covered Property”, until further notice, please always send BOTH a 30 Day NTV notice and a “forbearance letter” (see below for more information) to us as part of all new case submissions.

Forbearance Status

For every property that is a “Covered Property,” please note that for the foreseeable future, you will see a new information request from us: we must ask you to verify whether the Mortgage Loan for your Property is “in forbearance” anytime you ask us to file a new case, and again later, if/when you seek a Writ in any of those cases. The reason for this is that Sec. 4023 of the Act allows a Covered Property to ask the lender for “forbearance” from making the Property’s mortgage payments, for up to 90 days. If a “Covered Property” has the Owner place the mortgage into forbearance with the lender at any time, Sec. 4023 prohibits you from not only filing new eviction cases but also from seeking a Writ on any Judgments for possession that you might have obtained along the way – all the way through the end of 2020, potentially.  So, for now, every new case request and every new Writ request for Covered Properties will be followed by a request from our Team that you first verify that the Property is not in forbearance, so we know you are allowed to proceed before we approve and file them for you.

To speed this process up, though, we have created a handy form letter that you can use to give us this forbearance information at the time you make the request, by completing it and uploading it with your case documents before you submit your request. 

Exempt Properties

For each property that does NOT have any “federally backed mortgage” financing, those properties are able to conduct business as usual (in NC, the Courts are expected to again be accepting new eviction filings and holding hearings on previous cases starting June 21). However, in each of our 3 service States (NC/SC/GA), the Courts now require additional documentation as part of all new eviction cases: a CARES Act certification/affidavit (each state has its own form) must be provided with each new case sent to the Courts for filing.

So, in order to proceed for you, we need all clients to reach out to their lender/servicer and ask them to provide formal written confirmation of whether the property has a “federally backed multifamily mortgage loan” as defined in the CARES Act. If the Property is backed with a loan covered by the CARES Act, then we will note it in our records; but, if the Property is either not federally backed or is owned free and clear, then we will need the following information so that we can provide it as part of the CARES certification documentation that is now required:

  • For loans that are not federally-backed, we need a letter on letterhead from the lender/servicer that says: 

Our Company is the [lender]/[servicer] of the loan(s) issued to or for the benefit of the Owner of the property known as [Property Name] – [Owner Legal Name].  As such we are familiar with the nature, backing and issuance information for all such loan(s).  We hereby confirm that there are no loan(s) in place for this Property that meet the definition of the term “Federally Backed Multifamily Mortgage” as defined by Sec. 4024(a)(5) of the Act. 

Learn about Navigating Sec. 4042 of the CARES Act here

  • For properties not subject to a mortgage:

We’ll need the Owner to provide us with an Affidavit confirming that it is not subject to financing, so that when we prepare and submit cases for any evictions that are needed during the Moratorium period; the Affidavit can be provided to the Court so that it is clear that the eviction filing is proper under the Law. For single family properties (as opposed to Multi-Family Apartment Communities), we ask that you use this affidavit instead.

Once you have that written confirmation, please upload it to our partners using the form below so that we can have all your properties properly entered into our system as soon as possible so we know whether we’ll be able to file an eviction case with the Court for you.

Updates:

3/12/21: “Federal Court News: two different Federal Courts (one in Texas and one in Ohio) have issued opinions that cast doubt on the validity of the CDC’s Order: in the Texas case Lauren Terkel v. Center for Disease Control and Prevention, the Court ruled that the CDC’s Order was actually unconstitutional and therefore invalid; that ruling has already been appealed by the Dept. of Justice.  In the Ohio case SKYWORKS, LTD v. Center for Disease Control and Prevention, the Court took a different approach and held that the CDC’s Order was issued in violation of federal law on Regulatory Agency Rulemaking and is therefore not valid and enforceable; this decision has not been (but certainly will be) appealed, yet.”

Is this an eviction moratorium?
A: No, it’s not. Many are using the term moratorium as a convenient way to short-hand the content of the Order. The proposed Order would actually create a protocol in the nature of a “lockout suspension program” and not a ‘moratorium’ in any sense. The Order actually uses the words “temporary halt” to describe the effect on lockouts/setouts/removals and makes it clear that it can only be utilized in cases filed for non-payment of rent.

Does this apply to ALL tenants?
A. The program only applies to eligible tenants, NOT all tenants. If all tenants in a rental unit submit to the Landlord a written Declaration, under penalty of perjury, that they meet the Order’s qualifying criteria,’ they may temporarily halt a lockout/setout. However, not all tenants will meet the criteria, and their cases would therefore not be covered by this Order.
Is this Order permanent?
A: The effect of the Order is not permanent. The Order itself contemplates a “temporary halt” and would prevent ONLY actions that result in removing the tenant from the dwelling, and only until Dec. 31, 2020. After that, barring new legislative or regulatory changes, lockouts should be able to proceed for any tenants who have not gotten caught up or moved out.
The National Apartment Association (NAA) reported being deeply concerned by this action and given that it remains uncoupled with robust emergency rental assistance,  saying “they understand the devastating effects a national eviction moratorium will have on the apartment industry, housing affordability, and America’s 40 million apartment residents.”